BOARD DATE:	  29 July 2014

		DOCKET NUMBER:  AR20130020136 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests his general, under honorable conditions discharge be upgraded to honorable.

2.  The applicant states his discharge should be upgraded because it has been over 30 years and he was young and dumb at the time of his service.  He has since changed his ways.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 4 October 1979 when he was 18 years, 8 months, and 15 days of age and he held military occupational specialty 11B (Infantryman).  On 9 May 1980, he was assigned to the 3rd Battalion, 5th Infantry Regiment, Panama. 

3.  Between May and October 1980, he was frequently counseled by various members of his chain of command for his lack of initiative and motivation, failure to report on numerous occasions, disrespectfulness, and failure to obey lawful orders (by breaking restriction).

4.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), as follows on:

* 15 July 1980, for one specification each of being disrespectful in language to a noncommissioned officer (NCO), failing to obey a lawful order, and being absent without leave (AWOL) from his assigned unit
* 19 September 1980, for one specification each of sleeping while on guard duty and dereliction of duty 

5.  On 30 October 1980, he was notified by his immediate commander of the commander's intent to recommend him for discharge action under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-31 (Expeditious Discharge Program (EDP)), due to his poor attitude, lack of motivation, lack of self-discipline, and his failure to adapt socially and emotionally.  The commander stated he had been disrespectful and disobedient towards military authority, absent from his appointed place of duty, and did not take responsibility for his own actions.  He recommended the applicant's service be characterized as general, under honorable conditions and afforded him the right to decline the separation.

6.  On 30 October 1980, the applicant acknowledged notification of his proposed discharge from the Army and that he was advised of the basis for the contemplated separation action, the effect on future enlistment in the Army, the possible effects of a general, under honorable conditions discharge, and of the procedures and rights that were available to him.  He further acknowledged that he understood if his service was characterized as under honorable conditions he could expect to encounter substantial prejudice in civilian life.  He voluntarily consented to the separation and elected not to submit a statement in his own behalf.

7.  On 6 November 1980, the separation authority approved his discharge under the provisions of Army Regulation 635-200, paragraph 5-31, and directed his service be characterized as general, under honorable conditions.  On 21 November 1980, he was discharged accordingly.

8.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, paragraph 5-31 - EDP, for failure to maintain acceptable standards for retention with an under honorable conditions (general) characterization of service.  He completed 1 year, 1 month, and 18 days of creditable active service.

9.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  Army Regulation 635-200, paragraph 5-31, in effect at the time, provided that members who had completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential may be discharged under the EDP.  No member would be discharged under this program unless he/she voluntarily consented to the proposed discharge.  Issuance of an honorable discharge certificate was predicated upon proper military behavior and proficient performance of duty during the member's current enlistment with due consideration for the member's age, length of service, grade, and general aptitude.  

	a.  An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  A general discharge is a separation from the Army under honorable conditions of an individual whose military record was not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was counseled numerous times by his chain of command for his lack of initiative and motivation, failure to report on numerous occasions, disrespectfulness, and failure to obey lawful orders.  In addition, he received NJP on two occasions for failing to obey a lawful order, being disrespectful to an NCO, being AWOL, sleeping while on guard duty, and dereliction of duty.  Accordingly, his commander initiated separation action against him.  

2.  He voluntarily consented to his discharge and his separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation therefore were appropriate.  

3.  The applicant contends that his discharge should be upgraded because he was young and dumb at the time of his service.  Records show that he was over 19 years of age at the time of his offenses.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

4.  Based on his overall record, it is clear the applicant's service did not meet the standards of acceptable conduct for Army personnel that would merit an honorable discharge.  Therefore, he is not entitled to the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X______  ___X_____  ___X__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      __________X_______________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20130020136





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ABCMR Record of Proceedings (cont)                                         AR20130020136



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